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On the 4th of April 2016, the Standing Committee on Law and Justice (Law and Justice Committee) submitted a Report to Parliament regarding the security classification and management of inmates sentenced to life imprisonment. It responded to an intervention made by David Elliot (Minister for Corrective Services) on the reclassification of lifer Andrew Garforth.

In July 2015, Andrew Garforth was reclassified from maximum (A2) to medium (B) security on the recommendation of the Serious Offenders Review Council (SORC). Another 11 inmates serving a natural life sentence had also been reclassified to either medium or minimum security. Reacting to an outcry from the victims family and the public, the Commissioner of Corrective Services reclassified him and then later all natural lifers from their lower security back to maximum.

The Inspector of Custodial Services examined what had occurred and found that the Minister’s action in response to media attention and pressure was illegal. Minister Elliott was legally required to consult the Serious Offenders Review Council before his decision. He then went through the motions of consultation and made the same decision, reclassifying the lifers in maximum security. The classification and treatment of lifers based on anything other than security offends many principles within the justice system.

Summary of analysis

The Law and Justice Committee’s report contains 9 recommendations. One is to establish a separate classification called ‘lifers’ for those sentenced to life imprisonment, with little or no prospect of being released from custody. The Report also noted the community upheaval stemmed from the failure of Corrective Services NSW to educate the public and victims on the classification and correctional systems. The Law and Justice Committee recommended Corrective Services NSW undertake an extensive education and communication strategy so the public and victims will be better informed in the future.

This report is now before the Government for consideration. Corrective Services NSW has stated that the movements of lifers to maximum security would be reviewed after the Inquiry had been completed (page 18, para 2.53, 2.55). We are asking for that to happen now.

Under the new ‘lifer’ classification system, only prisoners who are serving a natural life term or an existing life sentence and subject to non-release recommendations would be included. The new classification will be based on the risk they pose to the community, preserves the good order of correctional facilities and ensures the safe and effective management of the inmates. These life prisoners will be managed by the SORC and will not be reclassified.

However, this does not mean that lifers do not have the prospect of release. Every individual is legally entitled to the prospect of being released, which comes in the form of a Royal Prerogative of Mercy under section 114 of the Crimes (Appeal and Review) Act 2001. The right was unchallenged in the Law and Justice Committee’s report, citing Justice Action’s Submission in that ‘individuals serving a life sentence are entitled to apply for a review of their sentence if they can argue, for example, that they have paid sufficient penalty, are no longer a public risk, or have changed as a person and should be given conditional liberty’ (page 6, para 1.34).

Lifers would be placed in correctional facilities on recommendation of SORC. They will not be placed in conditions below medium security (page 32, para 3.53), unless in exceptional circumstances (page 32, para 3.53). We think exceptional circumstances would include those who previously had lower security and respected that trust. Placement of lifer’s in medium security correctional facilities also allows for access to a greater variety of work opportunities and programs, than would be provided in maximum-security settings.

Access to a pre-release rehabilitation programs would be restricted. The Law and Justice Committee supported Corrective Services NSW’s current practice to not make these rehabilitative programs available for lifers, unless there is an imminent risk of criminal behaviour in custody (page 38, para 3.91), and are thus for internal management purposes. Other programs for personal development and education continue as before.

The Committee supported the provision of privileges to lifers, as with other prisoners, at the discretion of prison management, providing those privileges are a tool to elicit good behaviour (page 38, para 3.93). The Committee agreed that victims should not be involved in those decision-making processes because the matters are for internal prison management (page 51, para 4.64). SORC will continue to determine the placement of ‘lifers’. If the recommendations of the Council are not adopted, the Commissioner must provide reasons as to why (page 55, para 5.15). This requirement increases the transparency of decisions made regarding lifers, ensuring they are not made in response to pressure from the public, media or victims.

 

Corrective Services NSW Obligation to Educate the Public

The Committee effectively blamed Corrective Services NSW for the debacle and disturbance of peoples lives caused by the reclassification of lifers. They said the general public and victims have not been adequately informed and educated by Corrective Services about the classification system and prison system more generally, noting the need for “greater engagement directly with the public” (page 32, para 3.57). The Committee recommended that Corrective Services NSW develop a strategy to educate the public on the operation of the correctional system. This is an important step towards creating a greater understanding of the correctional systems, leading to a change in the community’s harsh perceptions and expectations. More communication and community education will lead to the recognition of issues faced by prisoners and be instrumental in the prevention of further out-cries regarding inmate reclassification or relocation, as occurred with the reclassification of Andrew Garforth.

The Committee also recommended introducing a range of measures to improve communication with victims of lifers including an opt-out Victims Register (Recommendations 2, 4, 5, 6, page xi). The register will contain “a list of matters that victims can nominate to receive updates about” (page 49, para 4.52). Corrective Services NSW is negotiating with victim support groups to create a list of matters which are both practical for Corrective Services NSW and of use to victims. However, the updates and information provided to victims should not violate a prisoner’s right to privacy. Registered victims should only be notified of changes to a prisoner’s management if it relates to safety concerns. Any other position only disturbs the victim and interferes with the public policy of rehabilitation of the prisoner.

 

The Right to Privacy

The Committee failed to comment on victims’ and prisoners’ right to privacy. This would have dealt with the whole area more sensitively in the future. We proposed, in our Submission, that in high profile cases, the media is easily able to exploit public interest for commercial gain. Before a trial there are already significant restrictions on reporting. There is a need to also create privacy rights for victims of crime after the trial. This needs to also apply to prisoners, as they are the other part of the relationship.

When confidential prisoner details are released by Corrective Services, it impedes on an offender’s right to privacy, affects their dignity and may negatively impact on their psychological wellbeing. There is no positive outcome to be gained by informing politicians or the media about changes to the management of a sentence, unless it could affect the safety of victims and the community.

Once the trial is over and the offender has been sentenced, the offender should have the right to serve the court’s sentence without interference from the media, the victim or politicians. This right is inherent in the controlled environment of a prison managed by the state, and the current legal obligation of staff not to use their trusted access to sell information to the media. Registered victimsshould only be notified of changes to a prisoner’s management if it relates to safety concerns. Any other position only disturbs the victim and interferes with the public policy of rehabilitation of the prisoner.

Analysis of the Committee’s findings in relation to the submission of Justice Action

Law and Justice Committee Recommendation 1:
Lifers New Classification

That the NSW Government amend the Crimes (Administration of Sentences) Regulation 2014 to establish a separate classification for inmates sentenced to life imprisonment with little or no prospect of being released from custody that is based on the risk they pose to the community, preserves the good order of correctional facilities and ensure the safe and effective management of the inmates.

Committee Comment
The committee acknowledges that some inquiry participants expressed the view that lifers should be permitted to be reclassified to a lower security classification than maximum security, as this is important for the safety and good management of correctional facilities and it provides a reason for lifers to be well-behaved towards staff and other inmates.

However, there remains considerable community unrest regarding this matter and we note that one victim support group strongly opposed lifers being reclassified below maximum security. In addition, other victim support groups recommended that lifers should not be classified lower than medium security because they believed that it is inconsistent with the community’s expectations and minimum security inmates have access to certain rehabilitation programs that are unsuitable for lifers, who will never be released.

The committee notes the view of Corrective Services NSW that the current security classification system is not appropriate for this cohort of inmates. Further, we note that there is an alternate option, which was supported by the department, which is to create a new classification for lifers. Corrective Services suggested that the inmates in this new category would never be subject to reclassification, and that the Review Council would be responsible
for managing secure custody arrangements for these inmates and would make recommendations to the Commissioner regarding placement within the correctional system based on an assessment of risks and needs.

The committee supports this option. We therefore recommend that the NSW Government introduce this new classification for all inmates serving a sentence of life imprisonment for the term of their natural lives or serving an existing life sentence and subject to non-release recommendations as defined in cl 1, sch 1 of the Crimes (Sentencing Procedure) Act 1999 and that it be based on the risk they pose to the community, preserves the good order of correctional facilities and ensures the safe and effective management of the inmates.

The placement of these inmates should also take into account the extremity of these individuals’ crimes. The committee is therefore of the view that the current practice of not placing lifers in conditions that equate to a C1 classification should be maintained, unless there are exceptional circumstances.

Perspective of Justice Action
Justice Action supports the Committee’s recommendation on the establishment of a new ‘lifer’ classification system. Under this system, prisoners who are serving a natural life term, or an existing life sentence that is subject to non-release recommendations, will be managed by the Serious Offenders Review Council and will not be reclassified. This does not mean lifers are denied the prospect of release or their right to hope. Every individual is legally entitled to the prospect of release. For lifers, this comes in the form of a Royal Prerogative of Mercy under section 114 of the Crimes (Appeal and Review) Act 2001 (Cth). This prospect of release was unchallenged by the Law and Justice Committee, citing Justice Action’s Submission in that ‘individuals serving a life sentence are entitled to apply for a review of their sentence if they can argue, for example, that they have paid sufficient penalty, are no longer a public risk, or have changed as a person and should be given conditional liberty’ (p. 6, par. 1.34).

Justice Action also supports the placement of lifers in different correctional facilities based on the recommendations of the Serious Offenders Review Council under the new classification system. The placement of lifers in facilities with medium security conditions, or minimum security in exceptional circumstances, allows for greater access to a variety of work opportunities and programs. This can significantly contribute to the personal development of lifers and provide a positive basis for an application for a Royal Prerogative of Mercy.

This Law and Justice recommendation reflects Justice Action’s stance on prisoners right to hope and development as reflected in our Submission to the NSW Legislative Council Inquiry: Every prisoner should be encouraged to improve their behaviour and develop personally, with the prospect of hope and reconciliation with the community. (Recommendation 4)

Law and Justice Committee Recommendation 2:
Communication and Education with Community

That Corrective Services NSW develop and action a comprehensive communication strategy to educate the public on the operation of the New South Wales correctional system.

Committee Comment
The Committee found that there is a lack of understanding and education in the community regarding the classification system and the prison system more generally. This contributes to the difficulty in effectively balancing the views of the community with sound custodial management practice. Despite updating fact sheets on the Department of Justice website, the Committee stated much more needs to be done by Corrective Services to educate the public, through greater engagement directly with the public. The Committee suggested information about the day-to-day lives of inmates and the security classification systems are important areas that need to be addressed in the education of the public.

Perspective of Justice Action
Justice Action support the Law and Justice Committee’s recommendation, recognising the importance of community education on the operation of the NSW correctional system. This practice is an important step towards creating a greater understanding of the correctional systems, leading to a change in the community’s harsh perceptions and expectations. More communication and community education will also lead to a greater understanding of the issues faced by prisoners and acceptance of the classification of lifers. The education of the public will be instrumental in the prevention of further out-cries when changes regarding an inmate occur, as followed with the reclassification of Andrew Garforth.

Law and Justice Committee Recommendation 3:
Victim Registers

That the NSW Department of Justice consider merging the victims registers of the Mental Health Review Tribunal, Juvenile Justice and Corrective Services NSW.

Committee Comment
The committee is pleased with Corrective Services NSW and their increased involvement with victims through their work in finding better modes of communication with them. They however are encouraging the Department of Corrective Services NSW to facilitate a greater exchange of information across the juvenile sector to better assist victims.

They support the suggestion for the merge of Mental Health Review Tribunal, Juvenile Justice and Corrective Services NSW as it provides easier access to information for victims.

Perspective of Justice Action
Justice Action acknowledges the importance of victim registers in providing support, empathy and education to victims. However, it is necessary to ensure these registers do not breach prisoners’ right to privacy by disclosing personal details and information on prisoners. Justice Action similarly recognises the importance of victims’ right to privacy, as outlined in Recommendation 5 of Justice Action’s Submission to the NSW Legislative Council Inquiry:
Both the victim and the offender should have the right to privacy protected in legislation.

Law and Justice Committee Recommendation 4:
Victim Registers (Opt-Out)

That Corrective Services NSW trial an opt-out Victims Register for victims of inmates sentenced to life imprisonment.

Committee Comment
The committee is supportive of victims calling for the register to be ‘opt-out’. Victims of lifers might find it emotionally difficult to be proactively seeking and joining the victim’s register during a time of great distress. They recommend, for a smooth process, the Corrective Services NSW should make the register an ‘opt-out’ system.

The committee recommend a trial of an opt-out victim register for victims of lifers.

Perspective of Justice Action
Justice Action supports the Law and Justice Committee’s ‘opt-out’ recommendation, believing it will assist victims with an opportunity to come to terms with what has occurred, allowing them to gain comfort and closure, and move forward with their life.

Law and Justice Committee Recommendation 5:
Victim Registers (Re-Joining)

That, as part of the opt-out system at recommendation 4, Corrective Services NSW establish a policy whereby the Victims Register conduct a one-off follow up of victims of inmates sentenced to life imprisonment who have opted-out of the register to ask if the victim would like to reconsider joining the register, and that victims be informed of this policy when they initially make the decision to opt-out.

Committee Comment
Furthermore to recommendation 4, the committee feel as if victims who may choose to opt-out of the Victims Register may change their minds at a later date. The recommendation is that the register complete a one off follow up after the victim has opted out, to consider their re-joining of the register.

Perspective of Justice Action
Justice Action acknowledges and respects the right for victims to change their mind about their involvement and the amount of knowledge they receive about inmates sentenced to life imprisonment. However, a one-off follow up of victims who have opted-out of the Victim Register may cause traumatic memories to resurface and question the closure they received when opting out. This may result in the victim contemplating to opt back into the register, reversing the progress they had made in moving forward with their life and coming to terms with what occurred. This notion was not considered by the Law and Justice Committee when making their recommendation. Justice Action proposes that when opting-out of the register, victims are given the choice to receive a one-off follow up rather than employing a compulsory follow-up policy.

Law and Justice Committee Recommendation 6:
Information Packages

That Corrective Services NSW establish a policy whereby, as soon as possible following sentencing, the Victims Register provide an information package to victims of inmates sentenced to life imprisonment and offer to telephone or meet with them to explain the correctional system, custodial management practices and the day-to-day life of an inmate and that it consider doing this in the presence of a counsellor.

Committee Comment
The committee states that it is important for the Victims Register to communicate with victims of lifers as soon as possible after sentencing. Victims should be well educated and informed about the register, possibly through an information package provided by Corrective Services NSW. Committee recommends options of offers to telephone or meet the victim and explain to them the correctional system, custodial management and day to day life of an inmate in the presence of a councillor.

Perspective of Justice Action
Justice Action recognises the important role victim education and communication has in shaping their perception, expectation and acceptance of the correctional system. Direct engagement with Corrective Services NSW and education on correctional system, custodial management and day to day life of an inmate, will allow the victim to better understand the classification process and therefore more accepting of decisions made regarding changes for lifers.

As Justice Action outlined in their submission to the Legislative Council Inquiry (Recommendation 2, 5), prisoner’s have the right to privacy, and the information provided to victims should not reveal personal details of offenders, rather a general overview of the system and processes.

Justice Action Submission Recommendation 2:
Victims should not be notified of changes to the security classification of a prisoner unless it could affect their safety.

Justice Action Submission Recommendation 5:
Both the victim and the offender should have the right to privacy protected in legislation

Law and Justice Committee Recommendation 7:
Victim Updates on Offender

That the Corrective Services NSW develop, in consultation with victim support groups and Commissioner of Victims Rights, a form to be provided to victims of inmates sentenced to life imprisonment following sentencing that includes a list of matter that victims can nominate to receive updates about, and that this form also be made available to current victims of inmates sentenced to life imprisonment.

Committee Comment
The committee stated that concerns regarding reclassification will no longer exist if recommendation 1 is adopted, where lifers will be subject to a separate ‘lifer’ classification system and cannot be reclassified.

The committee notes that victims should not be involved in the reclassification or custodial decision-making processes of lifers because they are matters for internal management of prisons. They emphasise that the consideration of the victim where the offender is a lifer is not less worthy, rather than to say that victims will never need to review the custodial management of the life prisoners, given that they will never be released.

The committee’s conclusion is that victims of lifers should be educated about the custodial management and classification systems enough to be able to interpret the rationale behind any processing decisions.

Perspective of Justice Action
As outline in its Submission (Recommendation 2), Justice Action supports the Committee’s view that victims have no influence in the custodial decision-making processes of lifers because they are matters for internal management of prisons. Instead, victims should be educated about the process so that they are able to understand the rationale behind the decisions made. The information updates provided to victims, based on a list of matters to be determined, should not breach a prisoner’s right to privacy. Information should not disclose an offender’s personal information unless there is a risk to the safety of the victim. This may include placement in a correctional facility within close proximity to the victim. Justice Action advocated these issues in their Submission to the NSW Legislative Council Inquiry, as outlined in the recommendations below.

Recommendation 1
In accordance with principles of the Rule of Law, victims should have no influence on the sentencing or post-sentencing processes of the justice system relating to the offender.

Justice Action Submission Recommendation 2:
Victims should not be notified of changes to the security classification of a prisoner unless it could affect their safety.

Recommendation 5
Both the victim and the offender should have the right to privacy protected in legislation.

Law and Justice Committee Recommendation 8:
Commissioner for Corrective Services

That the NSW Government amend the Crimes (Administration of Sentences) Regulation 2014 to state that, in cases where the Commissioner for Corrective Services does not adopt the recommendations of the Serious Offenders Review Council, reasons as to why the recommendations were not adopted must be provided.

Committee Comment
The Serious Offenders Review Council has the important role of recommending to the Commissioner the most appropriate course of action regarding the management of serious offenders and makes these recommendations based on extensive consultation with prison management and health professionals.

The committee notes the evidence received during the inquiry that the Commissioner sometimes only makes short statements when not implementing these recommendations. As such the committee recommends that the Government amend the Crimes (Administration of
Sentences) Regulation 2014 to state that the Commissioner must provide reasons for not adopting the recommendations of the Review Council.

Perspective of Justice Action
Justice Action supports the recommendation requiring the Commissioner for Corrective Services to provide reasons on why he/she did not adopt recommendations of the Serious Offenders Review Council. This requirement increases the transparency of decisions made regarding lifers, and does not allow for decisions to be made based on pressure from the public, media or victims. Justice Action similarly addressed this issue in its submission to the NSW Legislative Council Inquiry (Recommendation 3).

Justice Action Submission Recommendation 3:
Ministerial intervention in administrative matters relating to individuals should not be permitted. This should be the responsibility of the Commissioner upon the advice of expert Committees and Boards appointed for the purpose. The issues are too emotional to expect politicians to resist taking short term political benefit.

Law and Justice Committee Recommendation 9:
Improvements for Aged and Frail Inmates

That the NSW Government consider measures to improve the capacity of the prison system to adequately house, manage and care for aged and frail inmates, including to establish designated units and areas in more correctional centres in New South Wales.

Committee comments
The committee noted that aged inmates who are frail should still retain their classifications despite their limited security threat due to their age or condition. The committee is anticipating the Corrective Services NSW’s classification review that considers the aged and incapacitated inmates.

Perspective of Justice Action
Justice Action supports the humane treatment of all prisoners, including the aged and frail. The provision of designated units and areas in NSW correctional centres allows the aged and frail to serve their sentence in comfortable conditions suitable to their needs. This issue is particularly prominent for lifers, who are serving lengthy imprisonment periods which may see them in prison as an aged or frail individual.

Gaps in Standing Committee on Law and Justice Recommendations

Right to Privacy
When confidential prisoner details are released by Corrective Services, it impedes on an offender’s right to privacy, affects their dignity and may negatively impact on their psychological wellbeing. There is no positive outcome to be gained by informing politicians or the media about changes to the management of a sentence, unless it could affect the safety of victims and the community. This issue could be dodged by solving the problem in a structured and respectful way.

With high profile cases, the media is easily able to exploit the experiences of both victims and offenders for commercial gain. Before a trial there are already significant restrictions on reporting. However, there is a need to create privacy rights for victims of crime after the trial. This needs to also apply to prisoners, as they are the other part of the relationship.

Once the trial is over and the offender has been sentenced, the offender should have the right to serve the court’s sentence without interference from the media, the victim or politicians. This right is inherent in the controlled environment of a prison managed by the state, where there is a current legal obligation for staff not to use their trusted access to sell information to the media. Registered victims should only be notified of changes to a prisoner’s management if it relates to safety concerns. Any other position only disturbs the victim and interferes with the public policy of rehabilitation of the prisoner.” (Life Prisoners Inquiry, p. 7, par. 1.6, p.21).

 

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